DEEPAK ROSHAN,J. - (1.) The instant application is directed against the judgment dated 23.03.2013, passed by the learned Additional Sessions Judge - II, Saraikella in Cr. Appeal No. 102 of 2011, whereby the appeal filed by the petitioner against the judgment of conviction and order of sentence, both dated 18.11.2011 passed by the learned Chief Judicial Magistrate, Seraikella in G. R. No. 139 of 2007, has been confirmed whereby the petitioner has been found guilty for the offence under Section 381 of the Indian Penal Code and was sentenced for rigorous imprisonment for three years and a fine of Rs. 10,000/-.
(2.) Learned counsel for the petitioner has vehemently argued that both the courts below have committed a gross error by not appreciating the fact that the Investigating Officer has not been examined in the instant case and no corroborative evidence has been produced by the prosecution save and except the evidence of the informant (P.W. - 3). He has further submitted that since it is not a civil matter and as such the prosecution was accountable to prove the charges beyond all shadow of reasonable doubts. He further submits that the learned trial court should have appreciated the fact that the money has not been recovered; nor it has come on record that the same has been utilized by the petitioner. The allegation against the petitioner is that he was the driver of the car in which the informant (P.W. - 3) was carrying a bag with Rs. 9,00,000/- and the informant has asked the driver to watch the bag but after sometime the driver/petitioner came to the informant just after five to six minutes and asked whether he has brought the money with him. No prosecution witnesses have ever uttered a single word with respect to the recovery of money as such this is a fit case of acquittal. However, the courts below have based the entire judgment on the basis of the evidence of the informant (P.W. - 3). The learned counsel for the petitioner pleaded alternative argument by submitting that even assuming the case to be true in that case some lenience may be granted to the petitioner. The petitioner be granted relief by this Court. As a matter of fact the petitioner also prayed before the learned appellate court for invoking the provision under the Probation of Offenders Act . However, the same was rejected.
(3.) Per contra, the learned A.P.P. submits that there is concurrent finding given by the courts below and even though there is only one prosecution witness who has been relied by the learned trial court but admittedly there was only two persons in the car. Therefore, there cannot be any occasion for the third person to come and give evidence. As such, no leniency should be granted to the petitioner.;